BZAAA v Minister for Immigration and Border Protection
[2017] FCA 1634
•16 November 2017
FEDERAL COURT OF AUSTRALIA
BZAAA v Minister for Immigration and Border Protection
[2017] FCA 1634
Appeal from: BZAAA v Minister for Immigration [2017] FCCA 1714 File number: NSD 1250 of 2017 Judge: RARES J Date of judgment: 16 November 2017 Legislation: Migration Act 1958 (Cth) ss 5, 36 Cases cited: BZAAA v Minister for Immigration [2017] FCCA 1714
Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366
Date of hearing: 16 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 37 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr T Shaw of Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
NSD 1250 of 2017 BETWEEN: BZAAA
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
16 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an appeal from the decision of the Federal Circuit Court refusing the appellant’s claim for Constitutional writ relief in respect of the decision of the Administrative Appeals Tribunal given on 18 December 2015 to affirm the decision of the Minister’s delegate dated 29 July 2014 to refuse to grant him a protection visa: BZAAA v Minister for Immigration [2017] FCCA 1714.
Background
The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 14 April 2008 on a student guardian visa, issued in March 2008, on the basis that he was the guardian of his daughter, who held a student visa. On 9 May 2009, his daughter’s visa was cancelled and, as a consequence, his visa was cancelled on 27 May 2009 after which he and his daughter remained in Australia as non-lawful non-citizens.
On 5 August 2009, the appellant lodged a valid application for a protection visa and was granted a bridging visa. On 12 October 2009, the Minister’s delegate refused to grant the appellant a protection visa and he sought review of that decision in the then Refugee Review Tribunal.
On 1 April 2010, the Refugee Review Tribunal affirmed the delegate’s decision (the 2010 Tribunal). The appellant unsuccessfully sought judicial review of that decision, which the Federal Magistrates Court, as it then was, dismissed on 15 February 2011. The Full Court dismissed an appeal from that decision on 4 May 2011. On 23 June 2011, the High Court deemed the appellant’s application for special leave to appeal to have been abandoned, as a result of which on 22 July 2011 the appellant again became an unlawful non-citizen until 14 March 2014, when he lodged a further claim for a protection visa.
The appellant’s claims for protection, in his most recent application, were that he had previously requested a protection visa on the basis that he was a refugee for reasons of his Christian religion in China and the lack of freedom to practice it there. He acknowledged that that claim had been rejected with his earlier application. He claimed that, in September 2012, his wife had been threatened and blackmailed by officials and police in China following a car accident which she had with a car driven by a senior provincial official. He claimed that, although his wife was not at fault in the accident, the police accused her of being at fault because of the power of the official and had required her to pay 500,000 RMB in compensation. He said that that amounted to blackmail, but his wife, after consulting lawyers, had not been able to persuade any lawyer to take her case on because of the power of the official and the continual urgings of the police that she pay compensation. He claimed that, in February 2013, after she petitioned the local government for redress she received a threatening phone call telling her that she should not petition and should pay the compensation quickly. He claimed that on 6 April 2013, the police visited his wife again demanding compensation and she paid a small sum.
He claimed that on 10 May 2013 she argued with the police over making further payments and became involved in a struggle with the police, who said that she had assaulted them and that, as a result, they detained her for seven days and only released her after she paid a fine of 5,000 RMB. He claimed that his wife had been tortured in the detention centre, fallen ill and went home to bed. He said that he told his wife, when she related these circumstances to him, that he would go home, but she had warned him that, if he did, the police would send him to jail without any charges. He claimed that he was scared, recalled his own memory of being arrested for underground church meetings and that the police and other officials were corrupt. He said that he hoped to be able freely to worship God in Australia, but that in China there was no freedom of religion.
The delegate interviewed the appellant. The delegate found that although not bound by the 2010 Tribunal’s findings, which the delegate had read, the delegate agreed with them, having investigated the appellant’s claim to be a Christian, and saw no reason to depart from the 2010 Tribunal’s conclusions concerning the lack of credibility of the appellant’s claims. While the delegate accepted that the appellant was a Christian “of some form”, he did not accept that the appellant was a member of the Shouters sect, as he had also claimed, or that he had ever been regarded as one, or that the appellant’s “house church” had ever been targeted, or that he had ever been arrested, questioned, mistreated or sentenced by Chinese authorities shortly before coming to Australia, or otherwise investigated by the authorities, either before or after departing China, or was of any further or ongoing interest to those authorities.
The delegate found implausible the appellant’s claims that he could not return to China by reason of the alleged accident that his wife had had with the official’s car. The delegate found that there was no country information to suggest that, under Chinese law, that her liability would be transferred to her spouse. The delegate found that, under Chinese law, whenever a traffic accident occurred between a motor vehicle and non-motor vehicle driver or pedestrian, the wife having been on a bicycle, the motor vehicle had to bear the liability, except in cases where there was evidence that the non-motor vehicle driver had violated road traffic safety laws or deliberately caused the accident. The delegate found that that suggested the government official would have been responsible for any damages in the circumstances related by the appellant.
The delegate also found that the alleged accident had occurred almost two years before, and that the appellant’s wife had not seemed to come to any harm during that time, been charged with any offence, or to court, or been made to pay any further compensation. The delegate found that the appellant did not believe that the appellant would actually become a party to the claimed dispute, or have charges brought against him, because of his wife’s alleged involvement in it, and found the claim not to be credible.
Accordingly, the delegate refused to grant the appellant a protection visa.
The proceeding in the Tribunal
The Tribunal held a hearing with the appellant on two occasions, one in October 2015 and the second in November 2015. Its decision record summarised the proceedings before the Tribunal, including the course of its questioning of the appellant during the two hearing days. It noted that the appellant had told the Tribunal that he was not literate, and had a limited education.
The appellant told the Tribunal that he had departed China in circumstances where he had held gatherings of members of the Shouters religious sect in his own home every two to three months, but that in about March or April 2008 the police had raided a gathering held in another person’s home when they were listening to someone read the bible. He claimed they were not singing or shouting or making any noise, but that someone else may have reported their activities to the police. He said that he had been detained with his brother and parents on that occasion. The Tribunal put to the appellant that he had never mentioned that occasion in the process before the Department and the 2010 Tribunal when he made his claim to be a refugee for reasons of his religion. On the second hearing day before the Tribunal, the appellant gave different evidence, saying that he had been detained with 14 to 16 other persons at the gathering, but his parents and brother were not then present. When the Tribunal raised with him the inconsistency between what he had said a month before and what he was then saying, the appellant said he could not remember what he had said in October 2015. He told the Tribunal that he had been slapped with an open hand by one of the police officers, but not physically injured, and had been released without paying a fine and had not been formally charged or received any criminal record. The appellant confirmed to the Tribunal that none of his family had been detained since the alleged incident, but he asserted that they had been warned not to practice Christianity, yet they continued to do so in secret. The Tribunal recorded that, when it clarified with the appellant what he meant by “being warned”, he said that he had been told by the authorities not to join the gathering again and that, if he did so, they would again arrest him.
He claimed that he continued to be Christian, and a Shouter, but could not tell the Tribunal in what way Shouters were different from other Christians in either China or Australia, and asserted that Shouters were no different from any other Christian in their beliefs and practices. The appellant claimed to the Tribunal that he attended church in Auburn, a Sydney suburb, regularly every Sunday for a Mandarin-language service. It asked him about details concerning the lecture or sermon on the Sunday previous to its hearing, and the appellant had said that it was about the resurrection. When the Tribunal asked the appellant what the lecture said about the resurrection, he responded, “to be honest”, and when it further inquired how that was related to the resurrection, he told it it was “to be like Jesus”. The Tribunal pressed him again about how that was related to the resurrection and asked him what the significance of the resurrection was, but he was unable to give any specific details to it.
It then asked him if he had been baptised and he said he had not been. The Tribunal put to the appellant that he had told the 2010 Tribunal that he intended to be baptised and asked him why he had not been baptised in the six years subsequent to that, to which the appellant replied that he was not “fully qualified to be a genuine Christian”. The Tribunal asked the appellant to clarify what he thought the meaning of baptism was, and he said that it was “to have a new life”. The Tribunal asked the appellant, in several ways, what he needed to do before he could be baptised, but he was unable to explain that, beyond saying that he needed to do things “well enough”. He said that he understood that he would not be accepted by God if he died before being baptised and that he was concerned, but could not yet be baptised, because he had not yet “done well enough”.
The Tribunal also questioned the appellant about a number of other aspects that were fundamental to Christian belief and about his claimed practices of Christianity when he had been in China.
It then questioned him about his claims arising out of his wife’s alleged accident with the official’s car. It asked him, also, about if he had any other reasons to fear returning to China. Although he said he did not, the Tribunal raised with him the possibility that he might be seen as a failed asylum seeker, to which he responded that he was concerned that the refusal of his protection application would mean that he would be arrested by authorities were he to return to China, by reason, however, of his wife’s problems arising out of the car accident.
The Tribunal assessed the appellant’s claim to protection solely on the basis of the claim that Australia’s complementary protection obligations had been enlivened under s 36(2)(aa) of the Migration Act 1958 (Cth). That method of assessment was correct: Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366.
The Tribunal it was not satisfied that the appellant had told the truth in relation to critical aspects of his claims. It did not find credible the appellant’s evidence that one reason he did not include his daughter on his own protection application in 2008 was because he did not want her to find out what had happened to him in China, when he had been detained in April 2008, even though this incident had occurred only a few days before he departed China. The Tribunal found that his daughter was living in the household with him at that time in circumstances where he said he had been allegedly detained for three days and had needed medical treatment the day after he was released, only three days before he and his daughter departed from China. It found that in those circumstances his claim that he did not tell his daughter those matters was “somewhat implausible”.
The Tribunal was not satisfied that the appellant was a member of the Shouter sect, because he was unable to give any details about differences between Shouters and other denominations of Christianity or about any of the unique practices of Shouters. It did not find his evidence credible that his parents and brother had been detained at the same time as himself in April 2008 as a result of attending a family church gathering at a private house, because he had not previously given evidence about that in his 2009 application processes, including to the 2010 Tribunal. The Tribunal had regard to the fact that none of his family had been detained, harmed or otherwise persecuted as a result of their Christian beliefs or practices since the alleged incident in April 2008, immediately prior to the appellant’s departure from China, although he claimed that they had been warned not to attend Christian gatherings.
The Tribunal was not satisfied that the appellant had ever been detained by Chinese authorities as a result of his attendance at a family or Shouter church gathering in April 2008 or that he was a practising Shouter at the time. I note that the Tribunal used the year “2013” in two of the paragraphs of its decision when it was referring to the April 2008 gathering, but that was, as the trial judge found, an obvious typographical error.
The Tribunal found there were no substantial grounds for believing that it was a necessary and foreseeable consequence of the appellant being removed from Australia to China that there was a real risk that he would suffer significant harm, within the meaning of ss 36(2A) and 5(1) of the Act, as a result of any real or perceived involvement of his in the gatherings of Shouters or for his imputed beliefs or engagement in Shouter practices if he were to return to China then or in the reasonably foreseeable future. The Tribunal then found that because of the deficiencies in the appellant’s evidence as to any recollection of a meaningful kind relating to the sermon he had heard the previous Sunday before the hearing in the Tribunal and his failure to give a coherent reason why he had yet to be baptised, notwithstanding his assertion to the 2010 Tribunal that he intended to do so and its importance to Christian beliefs, reflected poorly on his credibility and the reliability of his evidence about his current belief in and practice of Christianity. In those circumstances, it was not satisfied that the appellant was a practicing Christian or had ever been one.
The Tribunal found that the appellant’s wife had been involved in a traffic accident in September 2012 and had been asked to pay compensation for alleged damage. It accepted that his wife had made a petition to the local people’s court in February 2013 and that she had been detained for some days in May 2013 as a result of her protest and petition about the injustice of being asked to pay compensation for an accident that she believed was not her fault and because of her struggle with the police. It accepted that the appellant’s wife had been released from detention after she had paid a fine of 5,000 RMB. It accepted the appellant’s evidence that his wife had not been detained, harmed or threatened with harm since the incident in May 2013 and that she had not made any further payments in respect of the demand for compensation.
The Tribunal accepted that the local Chinese authorities may perceive him to be wealthier than he actually is because of his long-term residence in Australia and might, therefore, make demands that he pay compensation that had been demanded from his wife. But, it noted that the appellant had not made any claim that he would be arbitrarily deprived of his life or would be sentenced to death, subjected to torture or to cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in s 5(1) of the Act. It found that his wife had been detained on only one occasion in May 2013 after she had struggled with the police and protested about the unjust demand that she make a compensation payment and had received some bruising on her arm that did not require medical attention. The Tribunal found that the wife had not suffered any subsequent harm or threat of harm as a consequence of not making any further payments over the succeeding two and a half years.
It found that the evidence, individually and cumulatively, did not satisfy it that there were substantial grounds for believing that there was a real risk that the appellant would suffer significant harm then or in the reasonably foreseeable future were he to return to China as a result of the compensation claims that had been made against his wife previously.
In all of the circumstances, the Tribunal found it was not satisfied the appellant was a Shouter in China or currently a genuine practicing Christian. It was not satisfied that he was of any adverse interest to the Chinese authorities due to his imputed or actual religious beliefs or practices or that he would be harmed as a failed asylum seeker should he return to China based on country information. It was not satisfied that there was real risk that, as a consequence of being his wife’s husband, he would be held responsible for the demands for compensation that had been made on his wife arising out of the traffic accident.
Accordingly, the Tribunal found that Australia did not owe the appellant protection obligations under s 36(2)(aa) of the Act and affirmed the delegate’s decision.
The proceeding before the trial judge
The appellant sought review of the Tribunal’s decision before the trial judge based on three lengthy grounds of review that, in substance, asserted that the Tribunal had erred in:
(1)its findings about his claim to have been involved in the incident in April 2008, its understanding of the way in which to determine whether someone was a Shouter or a person who attended underground religious gatherings in China and its alleged failure to take into account relevant material as to religious beliefs in China;
(2)not considering his claim for protection based on his religious belief by reason of past treatment of himself and his family for their practices of their religion; and
(3)failing properly to consider the evidence that the appellant had provided in relation to his wife’s petition to the local people’s court and some untranslated documents relating to her hospital stay.
Her Honour found that the Tribunal correctly confined its consideration to the appellant’s claims to those arising under s 36(2)(aa) of the Act. She found that it was neither irrational or illogical for the Tribunal to have rejected the appellant’s claims based on its adverse credibility assessment of his evidence. She found that its conclusions were based on evidence and that those findings were reasonably open to it on the material before it for the reasons that it gave. I agree.
Her Honour found that there was no question of law or jurisdictional error that arose from the way in which the Tribunal assessed the factual questions before it and its decision not to accept the appellant’s claim that he was a member of the Shouter sect. Her Honour found there was no material before the Tribunal to support the appellant’s claim that it had ignored relevant material suggesting that Shouters in some way had been disproportionately targeted for mistreatment in China, because it found that the appellant was not a Shouter. She rejected the first ground of review for those reasons that disclose no error.
The trial judge rejected the second ground of review on the basis that, first, the Tribunal had not accepted the appellant’s claims that he was a Shouter or a Christian and, secondly, it had found he would not be targeted as a result of being the husband of his wife in relation to the compensation claim that his wife had faced. There is no error apparent in her Honour’s reasons.
Her Honour rejected the third ground of review on the basis that it was factually misconceived. That was because the Tribunal had considered all of the evidence that the appellant had put before it and had accepted that his wife had been involved in a traffic accident, been detained, made the subject of a claim for compensation and required to pay a fine, but had not suffered any adverse treatment in the two years preceding the Tribunal hearing. I also am not able to perceive any error in the trial judge’s reasons for dismissing the third ground, and with it the application below.
This appeal
The appellant appeared for himself before me. He said that he did not regard the Tribunal’s decision as reasonable. He wanted it to investigate his case. He said that he told it the truth.
He had three grounds of appeal, namely that the Tribunal, first, had not recognised “the harm taken by our government clearly”, secondly, had not accepted his evidence or set out the explanations that he had given during the hearing and, thirdly, had not considered his true position because of the persecution he would face if he returned to China.
In my opinion, each of those grounds seeks only merits review. None of his grounds identifies any jurisdictional error made by the Tribunal. The grounds themselves ignore the fact that this is an appeal from the decision of the trial judge, not a review of the Tribunal’s decision, although, in reality, the appellant cannot be expected to know the intricacies of legal processes such as these.
The appellant put no evidence before her Honour or me of the transcript of the two hearing days before the Tribunal to show that there was anything in the course of his evidence or submissions to the Tribunal that the Tribunal had failed to consider.
In any event, it is plain, from what I have set out above, that the Tribunal understood what the appellant’s claims for protection were, analysed them carefully in accordance with the provisions of the Act for the purposes of determining his claim to complementary protection under s 36(2)(aa) and found that he had not established to its satisfaction that he was entitled to such protection. That was because it found that his evidence was not credible in respect of any harm he claimed to fear.
Conclusion
In my opinion there is no basis for finding that any of the grounds of appeal have any substance. For these reasons the appeal must be dismissed with costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 1 February 2018
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